The Faceless Court

TY - JOUR

T1 - The Faceless Court

AU - Zhang, Huyue

PY - 2017/1/31

Y1 - 2017/1/31

N2 - This Article is the first to examine the behavior of judges and their law clerks (officially entitled référendaires) at the Court of Justice of the European Union. It identifies a number of serious issues affecting Court performance. First, the Article finds that the Court's high judicial salaries and lack of procedural safe-guards for EU judicial appointments attract political appointees. As a consequence, some judges who are selected are not compe-tent to perform their duties and are dominated by their référen-daires. Moreover, the high turnover rate of EU judges hampers their productivity and increases their dependence on the référen-daires. Using a sample of data hand-collected from LinkedIn, the Article demonstrates that référendaires are drawn from a rela-tively closed social network. There is no open platform for re-cruiting référendaires, and the requirement of French as the working language significantly limits the pool of eligible candi-dates. The inefficiency of the référendaire labor market results in less competition, leading many référendaires to stay longer at the Court. The revolving door between the Court and the European Commission raises serious conflict issues, as the Commission is able to exert influence on the Court from the inside and gain a comparative advantage in litigation. In addition, the Court’s practice of issuing a single, collegial decision encourages free-riding, increases pressures for judges and référendaires to con-form, and suppresses dissent, as illustrated in the Microsoft case. Last but not least, the division of labor between the General Court and the Court of Justice could lead to divergent incentives for judges working at different levels of the Court.

AB - This Article is the first to examine the behavior of judges and their law clerks (officially entitled référendaires) at the Court of Justice of the European Union. It identifies a number of serious issues affecting Court performance. First, the Article finds that the Court's high judicial salaries and lack of procedural safe-guards for EU judicial appointments attract political appointees. As a consequence, some judges who are selected are not compe-tent to perform their duties and are dominated by their référen-daires. Moreover, the high turnover rate of EU judges hampers their productivity and increases their dependence on the référen-daires. Using a sample of data hand-collected from LinkedIn, the Article demonstrates that référendaires are drawn from a rela-tively closed social network. There is no open platform for re-cruiting référendaires, and the requirement of French as the working language significantly limits the pool of eligible candi-dates. The inefficiency of the référendaire labor market results in less competition, leading many référendaires to stay longer at the Court. The revolving door between the Court and the European Commission raises serious conflict issues, as the Commission is able to exert influence on the Court from the inside and gain a comparative advantage in litigation. In addition, the Court’s practice of issuing a single, collegial decision encourages free-riding, increases pressures for judges and référendaires to con-form, and suppresses dissent, as illustrated in the Microsoft case. Last but not least, the division of labor between the General Court and the Court of Justice could lead to divergent incentives for judges working at different levels of the Court.

M3 - Article

SN - 1086-7872

VL - 38

SP - 71

EP - 135

JO - University of Pennsylvania Journal of International Law

JF - University of Pennsylvania Journal of International Law

IS - 1

ER -